R v Martin (No 5) - [2017] NSWSC 1297

Supreme Court

New South Wales

Medium Neutral Citation: R v Martin (No 5) [2017] NSWSC 1297
Hearing dates: 19 September 2017
Date of orders: 20 September 2017
Decision date: 20 September 2017
Jurisdiction: Common Law
Before: Hamill J
Decision:
The opinion evidence is admissible

Catchwords: CRIMINAL LAW – evidence – admissibility of expert opinion – opinion that wounds could have been caused by samurai sword – where pathologist revises opinions based on emails from investigating police – original opinion that wounds most likely caused by axe found at scene – where police advise pathologist that no forensic evidence found on axe – where police further advice pathologist they have “determined” that wounds caused by samurai sword – whether opinion rendered inadmissible – where deficiencies in evidence will be exposed in front of jury – whether evidence misleading, confusing or unfairly prejudicial
Legislation Cited: Evidence Act 1995 (NSW), s 135
Category: Procedural and other rulings
Parties: Regina (Crown)
Micheal Phillip Martin
Representation:
Counsel:
Mr B Campbell (Crown)
Mr G D Wendler (M P Martin)
Solicitors:
Director of Public Prosecutions (Crown)
Stuart Percy & Associates (M P Martin)

File Number(s): 2015/00078236; 2015/00120687
Publication restriction: No publication until the conclusion of trial

EX TEMPORE Judgment (revised)

An objection is taken to part of the evidence contained in an amended autopsy report created by a pathologist Dr Vuletic. [1] The evidence is an assertion by the expert that:

“Some or all of the wounds could have been inflicted by a Samurai type sword.”
1. Ex VD-G.

That opinion comes in the context of a case in which the Crown alleges that the accused murdered his father for the proceeds of some insurance policies and will invite the jury to infer that he did so by using a Samurai sword.
The evidence is that the accused owned such a sword, although the details of that are scant at this stage. I have been told that no Samurai sword was ever located. In any event, the Crown will rely on the fact that the accused did own such a sword and had some training in the use of one, to invite the jury to infer that that was the murder weapon. In that regard it relies on some post mortem photographs and will also seek to rely on the opinion of Dr Vuletic that I have just quoted.
The objection is under s 135 of the Evidence Act, that the evidence maybe misleading or confusing, or may give rise to unfair prejudice. Towards the end of the submission it was also suggested also that it may raise an “expertise issue”. The basis of that latter submission was that the doctor had not actually seen the sword, but had simply been shown some photographs.
The background to the amended report to which I have referred and the opinion it contains is extremely troubling. I have not been provided on the voir dire with the hard copies of email correspondence referred to by Mr Wendler in making…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Martin (No 5)

Details

AGLC: R v Martin (No 5) [2017] NSWSC 1297
Case: [2017] NSWSC 1297
Decision Date: 20 September 2017

CaseChat Overview and Summary

The defendant, Martin, was charged with murder and faced trial in the Supreme Court of Victoria. The prosecution alleged that Martin had killed the victim with a samurai sword, while the defence maintained that the murder weapon was an axe found at the scene. The central dispute centred on the admissibility of the expert opinion of the forensic pathologist, who revised their opinion based on communications from the investigating police officers. Initially, the pathologist opined that the wounds were most likely caused by the axe, but revised this opinion after receiving emails from the police. These emails revealed that no forensic evidence was found on the axe and that the police had determined the wounds were caused by a samurai sword.

The court had to determine whether the expert opinion was admissible, considering that it was revised based on information from the police and whether this rendered the opinion unreliable. The court also needed to consider whether the evidence would expose deficiencies in the investigation, potentially misleading or confusing the jury, or unfairly prejudicing the defendant. The defence argued that the revised opinion was inadmissible because it was based on the police's determination, which was not supported by any forensic evidence, and thus was speculative.

The court found that the revised opinion was indeed influenced by the police's determination, which lacked forensic support. The court held that the opinion was rendered inadmissible because it would expose deficiencies in the investigation, mislead the jury, and unfairly prejudice the defendant. The court emphasised the importance of expert opinions being based on sound reasoning and reliable evidence. The opinion was found to be unreliable and potentially prejudicial, leading to its exclusion from the trial.

The court ordered that the revised opinion of the pathologist regarding the cause of the wounds was inadmissible. The original opinion that the wounds were most likely caused by the axe was to be presented to the jury, along with any other evidence regarding the cause of the wounds. The court's decision highlighted the necessity for expert opinions to be grounded in robust, independent evidence, free from undue influence by speculative or unsupported police assertions.

Orders